Judicial activism is said to be the overreaching or incorrect interpretation of the law, which is thought by critics to be a misuse of the power of interpretation of the law by a judge or judges for political or personal reasons.[according to whom?]
Overview
Judges in Canada are given the power to interpret law passed down from the legislature, discretionary power to resolve disputes, and the power to use common law and accepted judicial policy to render judgement. By the principle of separation of powers, a strong tradition in Canada and accepted practice, judges should respect the role of the legislature to create law.[according to whom?] Judges are also charged to impartially apply the law as it is written.[citation needed]
Canada has a legal system that is derived from the British system of common law (and the French system in the province of Quebec). Canadian Courts have a structure that relies more heavily on the discretion of its judges, policy and common law to create a workable body of law.[citation needed] Thus Canada's legal system may have more potential for conflicts with regards to the accusation of judicial activism, as compared to the United States. [neutrality is disputed]
Former Chief Justice of the Supreme Court of Canada Beverley McLachlin has stated that:
the charge of judicial activism may be understood as saying that judges are pursuing a particular political agenda, that they are allowing their political views to determine the outcome of cases before them. ... It is a serious matter to suggest that any branch of government is deliberately acting in a manner that is inconsistent with its constitutional role.
The recent judgment Chaoulli v Quebec [2005] 1 R.C.S. which declared unconstitutional the prohibition of private healthcare insurance, and challenged the principle of Canadian universal health care in Quebec was deemed by many as a prominent example of judicial activism.[weaselwords] The judgment was written by Justice Deschamps with a tight majority of 4 against 3.
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in federal countries such as the United States and Canada, the relationship between the central government and state, provincial, or territorial governments.
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical division is into three branches: a legislature, an executive, and a judiciary, which is sometimes called the trias politica model. It can be contrasted with the fusion of powers in parliamentary and semi-presidential systems where there can be overlap in membership and functions between different branches, especially the executive and legislative.
The Supreme Court of Canada is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts. The Supreme Court is bijural, hearing cases from two major legal traditions and bilingual, hearing cases in both official languages of Canada.
The Canadian Charter of Rights and Freedoms, often simply referred to as the Charter in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all areas and levels of the government. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was signed into law by Queen Elizabeth II of Canada on April 17, 1982, along with the rest of the Constitution Act, 1982.
The legal system of Canada is pluralist: its foundations lie in the English common law system, the French civil law system, and Indigenous law systems developed by the various Indigenous Nations.
In the United States, strict constructionism is a particular legal philosophy of judicial interpretation that limits or restricts such interpretation only to the exact wording of the law.
The Judicial Yuan is the judicial branch of the Taiwanese government. It runs a Constitutional Court and oversees all systems of courts of Taiwan, including ordinary courts like the supreme court, high courts, district courts as well as special courts like administrative courts and disciplinary courts. By Taiwanese law, the Judicial Yuan holds the following powers:
Landmark court decisions, in present-day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law. "Leading case" is commonly used in the United Kingdom and other Commonwealth jurisdictions instead of "landmark case", as used in the United States.
The court system of Canada forms the judicial branch of government, formally known as "The Queen on the Bench", which interprets the law and is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature, while others are provincial or territorial.
Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually implies that judges make rulings based on their own views rather than on precedent. The definition of judicial activism and the specific decisions that are activist are controversial political issues. The question of judicial activism is closely related to judicial interpretation, statutory interpretation, and separation of powers.
Chaoulli v Quebec (AG) [2005] 1 S.C.R. 791, 2005 SCC 35, was a decision by the Supreme Court of Canada of which the Court ruled that the Quebec Health Insurance Act and the Hospital Insurance Act prohibiting private medical insurance in the face of long wait times violated the Quebec Charter of Human Rights and Freedoms. In a 4 to 3 decision, the Court found the Acts violated Quebecers' right to life and security of person under the Quebec Charter. The ruling is binding only in Quebec. Three of the seven judges also found that the laws violated section seven of the Canadian Charter of Rights and Freedoms. One judge did not rule on the Canadian Charter. The result was a 3–3 tie on the question of the Canadian Charter, so Chaoulli decision does not apply to any other province.
Aharon Barak is an Israeli lawyer and jurist who served as President of the Supreme Court of Israel from 1995 to 2006. Prior to this, Barak served as a Justice of the Supreme Court of Israel from 1978 to 1995, and before this as Attorney General of Israel from 1975 to 1978.
The Living Constitution, or judicial pragmatism, is the viewpoint that the United States Constitution holds a dynamic meaning that evolves and adapts to new circumstances even if the document is not formally amended. The Constitution is said to develop alongside society's needs and provide a more malleable tool for governments. The idea is associated with views that contemporary society should be considered in the constitutional interpretation of phrases. The Constitution is referred to as the living law of the land as it is transformed according to necessities of the time and the situation. Some supporters of the living method of interpretation, such as professors Michael Kammen and Bruce Ackerman, refer to themselves as organists.
Canadian constitutional law is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws inconsistent with the Constitution have no force or effect.
A supreme court is the highest court within the hierarchy of courts in many legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and highcourt of appeal. Broadly speaking, the decisions of a supreme court are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts.
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review, may invalidate laws, acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.
Judicial independence is protected by Singapore's Constitution, statutes such as the State Courts Act and Supreme Court of Judicature Act, and the common law. Independence of the judiciary is the principle that the judiciary should be separated from legislative and executive power, and shielded from inappropriate pressure from these branches of government, and from private or partisan interests. It is crucial as it serves as a foundation for the rule of law and democracy.
Judicial interpretation is the way in which the judiciary construes the law, particularly constitutional documents, legislation and frequently used vocabulary. This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review.
The Federal Government of Brazil is the national government of the Federative Republic of Brazil, a republic in South America divided in 26 states and a federal district. The Brazilian federal government is divided in three branches: the executive, which is headed by the President and the cabinet; the legislative, whose powers are vested by the Constitution in the National Congress; and the judiciary, whose powers are vested in the Supreme Federal Court and lower federal courts. The seat of the federal government is located in Brasília.
Judicial populism or juridical populism is a phenomenon where the judgments and actions of the courts are driven by the masses' or certain groups' perception of justice. The term, which some refer to as popular constitutionalism, has been described as a reaction to the perceived elitist bias in the legal system.
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